Bell v. ABB Group, Inc. et al

Filing 347

ORDER denying 256 Motion in Limine. Signed by Judge Staci M. Yandle on 9/1/2015. (rlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MRS. SHARON BELL, Executor of the Estate
of MR. RICHARD W. BELL, Deceased,
Plaintiff,
Case No. 13-cv-1338-SMY-SCW
vs.
ABB GROUP, INC., et al.,
Defendants.

ORDER

This matter comes before the Court on Defendant General Electric Company’s Motion in
Limine to Exclude the Testimony of Jerome E. Spear (Doc. 256) in which Defendant John
Crane, Inc. joined (Doc. 269). Defendant asserts that Mr. Spear’s methodology is “opaque” and
that his opinion is “mere ipse dixit,” rendering his report and testimony unreliable. Therefore,
Defendant argues, Mr. Spear’s testimony should be excluded under Daubert v. Merrell Dow
Pharm., Inc. 509 U.S. 579 (1993). Plaintiff filed a timely Response (Doc. 286). For the
following reasons, Defendant’s motion is DENIED.
Defendants’ Motion is subject to the liberal standards embodied in Federal Rule of
Evidence 702 (see United States v. Hall, 165 F.3d 1095, 1106 (7th Cir. 1999)) and Daubert, in
which the Supreme Court established the test for evaluating the reliability of expert testimony.
See Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013) (Daubert “remains the
gold standard for evaluating the reliability of expert testimony.”). In Daubert, the Supreme
Court held that for scientific evidence to be admissible under Federal Rules of Evidence 702, a
District Court must find it both relevant and reliable; it must be scientific knowledge grounded

“in the methods and procedures of science” and consist of more than “subjective belief or
unsupported speculation.” Daubert, 509 U.S. at 589-90.
Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702.
District judges have considerable discretion in deciding whether particular expert
testimony is reliable. Manpower, Inc., 732 F.3d at 806 (citing Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999)). Reliability is primarily a question of the validity of an
expert’s methodology, not the quality of his data or of the conclusions produced. Id. A district
judge who unduly scrutinizes the quality of the expert’s data and conclusions, rather than the
reliability of the methodology he employed, usurps the role of the jury. Stollings v. Ryobi
Techs., Inc., 725 F.3d 753, 766 (7th Cir. 2013); Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th
Cir. 2000).
When evaluating expert testimony under Rule 702, the preliminary question is “whether
the reasoning or methodology underlying the testimony is scientifically valid and . . . whether
that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S.
at 592-93. Considerations include whether a theory or technique is capable of being or has been
tested, whether it has been subjected to peer review and publication, its known or potential rate
of error when applied, and whether it has gained general acceptance. Id. at 593-94; accord Conn,
297 F.3d at 555.
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Rule 702’s advisory committee’s note suggests courts also consider:
(5) whether “maintenance standards and controls” exist; (6) whether the
testimony relates to “matters growing naturally and directly out of
research they have conducted independent of the litigation,” or developed
“expressly for purposes of testifying”; (7) “[w]hether the expert has
unjustifiably extrapolated from an accepted premise to an unfounded
conclusion”; (8) “[w]hether the expert has adequately accounted for
obvious alternative explanations”; (9) “[w]hether the expert is being as
careful as he would be in his regular professional work outside his paid
litigation consulting”; and (10) “[w]hether the field of expertise claimed
by the expert is known to reach reliable results for the type of opinion the
expert would give.”

Fed. R. Evid. 702 advisory committee’s note (2000 amends.); accord Fuesting v. Zimmer, Inc.,
421 F.3d 528, 534-35 (7th Cir. 2005), vacated in part on other grounds, 448 F.3d 936 (7th Cir.
2006), cert. denied, 127 S. Ct. 1151 (2007).
Here, Mr. Spear conducted a qualitative exposure assessment based in part on historical
data and exposure modeling (Doc. 286-3, p. 3). In his deposition, Spear testified that he did not
focus on “matching equipment with exposures” or “manufacturers with exposures” and does not
intend to quantify Mr. Bell’s exposure levels (Id at p. 5). His report and testimony reflect his
opinion that “any exposure above background increases your risk” and the greater the frequency
of exposure, “obviously the more risk you have” (Id). For his opinions, Spear relies on a
historical analysis of pipefitter exposure to asbestos (which he states is substantially similar to
that of boiler tenders in the U.S. Navy based on the materials used and the type of labor
performed with those materials). He concludes Mr. Bell’s exposure to asbestos “more than
likely exceeded, on a routine basis, historical and current occupational exposure standards for
asbestos” (Doc. 286-1, p. 7).
The Court disagrees that Mr. Spear’s methodology is “opaque” or that his opinions are
unreliable under Daubert. His testimony relates to matters growing naturally out of historical
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research and his experience as an industrial hygienist. There is no indication Mr. Spear
unjustifiably extrapolated to reach an unfounded conclusion. His opinions are reasonably
supported by evidence, rest on authority and, as such, cannot be fairly characterized as mere ipse
dixit. Accordingly, Defendants’ motion is denied.

IT IS SO ORDERED.
DATE: September 1, 2015

s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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